the new legal realism, volume ii

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1 the new legal realism, volume ii Studying Law Globally This is the second of two volumes announcing the emergence of the New Legal Realism. At a time when the legal academy is turning to social science for new approaches, these volumes chart a new course for interdisciplinary research by synthesizing law on the ground, empirical research, and theory. Volume II explores the integration of global perspectives and information into our understanding of law. Increasingly, local experiences of law are informed by broader interactions of national, international, and global law. Lawyers, judges, and other legal actors often have to respond to these broader contexts, while those pursuing justice in various global contexts must wrestle with the specific problems of translation that emerge when different concepts of law and local circumstances interact. Using empirical research, the authors in this path-breaking volume shed light on current developments in law at a global level. heinz klug is Evjue-Bascom Professor of Law at the University of Wisconsin Law School. Having grown up in South Africa, he participated in the anti-apartheid struggle, spent eleven years in exile, and returned in 1990 as a member of the ANC Land Commission. Professor Klug s book on South Africa s democratic transition, Constituting Democracy, was published by Cambridge University Press in sally engle merry is Silver Professor of Anthropology at New York University. She is the author or editor of nine books, including the J. Willard Hurst Prize-winning Colonizing Hawai i: The Cultural Power of Law (2000). Her most recent book is The Quiet Power of Indicators (2015), co-edited with Kevin Davis, Angelina Fisher, and Benedict Kingsbury.

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3 The New Legal Realism, Volume II studying law globally Edited by HEINZ KLUG University of Wisconsin School of Law SALLY ENGLE MERRY New York University

4 32 Avenue of the Americas, New York, ny , USA Cambridge University Press is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. Information on this title: / Cambridge University Press 2016 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2016 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data The new legal realism : translating law-and-society for today s legal practice / Stewart Macaulay, University of Wisconsin, Madison; Elizabeth Mertz, American Bar Foundation and University of Wisconsin School of Law; Thomas W. Mitchell, University of Wisconsin School of Law. volumes cm ISBN (hardback) 1. Law United States Philosophy. 2. Realism. 3. Law Study and teaching United States. I. Macaulay, Stewart, 1931 editor. II. Mertz, Elizabeth, editor. III. Mitchell, Thomas W, editor. KF379.N dc isbn Hardback isbn Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

5 To Elizabeth Mertz, a creative and tireless advocate for New Legal Realism

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7 Contents List of contributors Preface to The New Legal Realism, Volumes I and II Michael McCann page ix xv 1 Introduction 1 Heinz Klug and Sally Engle Merry section i: the globalization of law 11 2 African Constitutionalism From the Bottom Up 13 Martin Chanock 3 Human Rights Monitoring, State Compliance, and the Problem of Information 32 Sally Engle Merry 4 Intellectual Property and the Creation of Global Rules 52 Susan K. Sell section ii: the global transfer of norms 67 5 Colonizing the Clinic: The Adventures of Law in HIV Treatment and Research 69 Carol A. Heimer and Jaimie Morse 6 The Politics of Islamic Law and Human Rights: Sudan s Rival Legal Systems 96 Mark Fathi Massoud 7 Women Seeking Justice At the Intersection Between Vernacular and State Laws and Courts in Rural KwaZulu-Natal, South Africa 113 Sindiso Mnisi Weeks vii

8 viii Contents section iii: global institutions and the changing roles of judges and lawyers New Legal Realism and International Law 145 Gregory Shaffer 9 The Deconstruction of Offshore 160 Sol Picciotto 10 The Changing Roles of Lawyers in China: State Bureaucrats, Market Brokers, and Political Activists 180 Sida Liu section iv: global justice The Irreconcilable Goals of Transitional Justice 201 Bronwyn Leebaw 12 Pushing States to Prosecute Atrocity: The Inter-American Court and Positive Complementarity 225 Alexandra Huneeus 13 When Law and Social Science Diverge: Causation in the International Law of Incitement to Commit Genocide 242 Richard A. Wilson Index 265

9 Contributors Martin Chanock is Emeritus Professor at La Trobe Law School in Melbourne, Australia. A renowned legal historian, he is the author of The Making of South African Legal Culture, : Fear, Favour and Prejudice (2001); Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (1998); and Unconsummated Union: Britain, Rhodesia, and South Africa, (1977). Chanock s work locates law in discourse as well as society, while also, in the words of one reviewer, revealing law s failure to protect against arbitrary power and providing a distressing lesson in legal realism. Carol A. Heimer is Professor of Sociology at Northwestern University, Research Professor at the American Bar Foundation, and Lenore Annenberg and Wallis Annenberg Fellow in Communication at the Center for Advanced Study in the Behavioral Sciences, Stanford University. Her current research focuses on overlapping normative systems, including especially the normative systems of law and medicine in the world of HIV/AIDS. She is currently completing a book project based on her ethnographic work in HIV clinics in the United States, Thailand, Uganda, and South Africa. Recent publications from this project include: Wicked Ethics (Social Science and Medicine); Inert Facts and the Illusion of Knowledge (Economy and Society, winner of the 2014 Star-Nelkin Award); and Extending the Rails (with J. Petty, Social Studies of Science). Her previous works include For the Sake of the Children (with L.R. Staffen, 1998), Reactive Risk and Rational Action (1985), and Organization Theory and Project Management (with A.L. Stinchcombe, 1985). Professor Heimer received her BA from Reed College and her PhD from the University of Chicago. Alexandra Huneeus is Associate Professor of Law at the University of Wisconsin Madison. She was previously a fellow at the Center on Democracy, Development, and the Rule of Law at Stanford University. Professor Huneeus s research focuses on international law, courts, and politics, with an emphasis on human rights. She is currently working on a project examining the evolution of regional human rights systems, in particular the Inter-American System for Human Rights. Her article International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of ix

10 x List of contributors the Human Rights Courts (2013) won the Association of American Law Schools (AALS) 2013 Scholarly Papers Competition. She also edited Culture of Legality: Judicialization and Political Activism in Latin America (Cambridge University Press, 2010). She received her PhD and JD from the University of California, Berkeley. Prior to studying law, Professor Huneeus was an editor and journalist in Santiago, Chile, and in San Francisco. Heinz Klug is Evjue-Bascom Professor of Law at the University of Wisconsin Law School and Honorary Senior Research Associate in the School of Law at the University of the Witwatersrand, Johannesburg, South Africa. Growing up in Durban, South Africa, he participated in the anti-apartheid struggle. After spending eleven years in exile, he returned to South Africa as a member of the ANC Land Commission, and has been involved in post-apartheid South Africa in a number of capacities. His research focuses on constitutional transitions, constitution building, human rights, international legal regimes, and natural resources. His publications include The Constitution of South Africa: A Contextual Analysis (2010) and Constituting Democracy: Law, Globalism and South Africa s Political Reconstruction (Cambridge University Press, 2000). Bronwyn Leebaw is Associate Professor in the Department of Political Science at the University of California, Riverside. She currently serves on the editorial board of Humanity: An Interdisciplinary Journal of Human Rights and as co-organizer of the UC Human Rights Collaboration funded by the UC Humanities Research Institute. Leebaw s articles on human rights, humanitarianism, and transitional justice have been published in journals such as Perspectives on Politics, Human Rights Quarterly, Polity, Humanity, and the Journal of Human Rights. Her first book, Judging State- Sponsored Violence, Imagining Political Change (Cambridge University Press, 2011), won the 2012 award for best book on ethics and international politics, given by the International Ethics Section of the International Studies Association. Leebaw received a PhD in political science from the University of California, Berkeley. Sida Liu is Assistant Professor of Sociology and Law at the University of Wisconsin Madison. He is also Faculty Fellow at the American Bar Foundation. His research focuses on historical change, social structure, political mobilization, and globalization of the legal profession. Recent publications include The Logic of Fragmentation: An Ecological Analysis of the Chinese Legal Services Market (in Chinese, 2011), The Legal Profession as a Social Process: A Theory on Lawyers and Globalization (2013), and Law s Social Forms: A Powerless Approach to the Sociology of Law (2015). He graduated from Peking University (LLB) and the University of Chicago (MA, PhD). Mark Fathi Massoud is Associate Professor of Politics and Legal Studies at the University of California, Santa Cruz, and a Law and Public Affairs Fellow at Princeton University. He has done extensive work on the institutionalization of

11 List of contributors xi law and human rights in conflict settings and authoritarian states. His first book, Law s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan (Cambridge University Press), received prizes from the Law and Society Association and American Political Science Association. Massoud received a Guggenheim Fellowship in Michael McCann is Gordon Hirabayashi Professor for the Advancement of Citizenship at the University of Washington (UW). Professor McCann was the Founding Director of the Law, Societies, and Justice program as well as the Comparative Law and Society Studies (CLASS) Center at the University of Washington for more than a dozen years. He is the author of more than sixty article-length publications and numerous books, including Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (1994) and (with William Haltom) Distorting the Law: Politics, Media, and the Litigation Crisis (2004); both books have won multiple professional awards. His current research, with George Lovell, documents and analyzes the history of struggles for socioeconomic rights and social justice by Filipino immigrant workers in the western United States over the twentieth century. Professor McCann has won a Guggenheim Fellowship (2008), a Law and Public Affairs Program Fellowship at Princeton ( ), and numerous National Science Foundation (NSF) and other research grants; he was elected President of the Law and Society Association for In 2014, he assumed a new leadership role as Director of the Harry Bridges Center for Labor Studies at the University of Washington. Sally Engle Merry is Silver Professor of Anthropology at New York University. Her recent books include Colonizing Hawai i, Human Rights and Gender Violence, Gender Violence: A Cultural Perspective, and The Practice of Human Rights (co-edited with Mark Goodale; Cambridge, 2007). Her forthcoming book, The Seductions of Quantification: Measuring Human Rights, Gender Violence, and Sex Trafficking, examines indicators as a technology of knowledge used for human rights monitoring and global governance. She has recently co-edited The Quiet Power of Indicators with Kevin Davis and Benedict Kingsbury (Cambridge University Press, 2015) and A World of Indicators with Richard Rottenburg, Song- Joon Park, and Johanna Mugler (Cambridge University Press 2015). She received the Hurst Prize for Colonizing Hawai i in 2002, the Kalven Prize for scholarly contributions to sociolegal scholarship in 2007, and the J.I. Staley Prize for Human Rights and Gender Violence in Sindiso Mnisi Weeks is Assistant Professor at the School for Global Inclusion and Social Development at the University of Massachusetts, Boston. She was formerly a lecturer in legal studies at the University of Massachusetts, Amherst, and a resident scholar at the University of New Hampshire School of Law. She was also previously a senior lecturer in the Department of Private Law and a senior researcher at the

12 xii List of contributors Centre for Law and Society at the University of Cape Town, where she worked on the Rural Women s Action Research Project. Professor Mnisi Weeks is a co-author of African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (2013). Her areas of expertise include women s rights, traditional courts, the relationship between culture and human rights, public policy, the institutionalization of traditional authorities, the relationship between property and authority, the law of succession, and comparative epistemology. Professor Mnisi Weeks received her BA and LLB from the University of Cape Town and her doctorate in law from Oxford University, where she was a Rhodes Scholar. She also previously clerked for the Deputy Chief Justice of the Constitutional Court of South Africa, Dikgang Moseneke. Jaimie Morse is a PhD candidate in sociology at Northwestern University, where she is a Presidential Fellow, Mellon Interdisciplinary Cluster Fellow in Science Studies, and Graduate Fellow in Legal Studies. Her research lies at the intersection of law, medicine, human rights, and science and technology studies. Her current research traces the history and use of medical evidence as a means of human rights advocacy to document political and sexual violence; it has been published in Genocide Studies and Prevention. She worked with Professor Carol Heimer at the American Bar Foundation as part of her comparative study of the role of law in medicine and the use of rules in HIV/AIDS clinics in the United States, Uganda, South Africa, and Thailand. Morse was a Fulbright Scholar in Malawi, Central Africa, and also received an MA in public health from the University of California, Los Angeles. Sol Picciotto (BA Oxford, JD Chicago) is Emeritus Professor of Lancaster University, a Senior Adviser of the Tax Justice Network, coordinator of the BEPS Monitoring Group, and a member of the Advisory Group of the International Centre for Tax and Development, where he coordinates and carries out research on taxation of transnational corporations with special reference to developing countries. He has taught at the Universities of Dar es Salaam ( ), Warwick ( ), and Lancaster ( ); and was Scientific Director of the Oñati International Institute for the Sociology of Law ( ). He is the author of International Business Taxation (1992), Regulating Global Corporate Capitalism (2011), several co-written books including Corporate Control and Accountability (1993), International Regulatory Competition and Coordination (1996), and Regulating International Business: Beyond Liberalization (1999), and numerous chapters and articles on various aspects of international business and economic law, and social theory of law. Susan K. Sell is Professor of Political Science and International Affairs at George Washington University. She is author of Power and Ideas: The North-South Politics of Intellectual Property and Antitrust; Private Power, Public Law, and with Christopher May, Intellectual Property: A Critical History. She is co-editor of Who Governs the

13 List of contributors xiii Globe? She has published numerous articles and book chapters on intellectual property, including Revenge of the Nerds : Collective Action against Intellectual Property Maximalism in the Global Information Age (International Studies Review, 2013); and TRIPS was Never Enough: Vertical Forum-Shifting, FTAs, ACTA, and TPP (Journal of Intellectual Property Law, 2011). She earned her BA in political science at Colorado College; her M.A. at University of California, Santa Barbara, and her PhD at University of California, Berkeley. Gregory Shaffer is Chancellor s Professor at the University of California at Irvine School of Law. Professor Shaffer s publications include Transnational Legal Orders (Cambridge University Press, 2015, co-edited with Terence Halliday); Transnational Legal Ordering and State Change (Cambridge University Press, 2013); Dispute Settlement at the WTO: The Developing Country Experience (Cambridge University Press, 2011); Regulating Risk in the Global Economy: The Law and Politics of Genetically Modified Foods (2008); Defending Interests: Public-Private Partnerships in WTO Litigation (2003); Transatlantic Governance in the Global Economy (2001); and more than ninety articles and book chapters on international trade law, global governance, and globalization s impact on domestic regulation. His work has been published in the main law reviews or international law reviews at Harvard, Yale, Stanford, Columbia, NYU, Virginia, Michigan, Duke, and Cornell, as well as numerous peer-reviewed journals. Previously, he was the Melvin C. Steen Professor of Law at the University of Minnesota Law School, Wing Tat Lee Chair at Loyola University Chicago, and Professor of Law at the University of Wisconsin and Director of the University s Center on World Affairs and the Global Economy, and of its European Union Center. He is Vice President of the American Society of International Law. He received his JD from Stanford Law School and his BA from Dartmouth College. Richard A. Wilson is the Gladstein Distinguished Chair of Human Rights and Professor of Law and Anthropology at the University of Connecticut Law School, and founding director of the Human Rights Institute at UConn. Wilson studies international human rights, and in particular post-conflict justice institutions such as truth and reconciliation commissions and international criminal tribunals. Having received his BSc and PhD from the London School of Economics and Political Science, Professor Wilson held full-time faculty positions at the Universities of Essex and Sussex, as well as fellowships from the National Endowment for the Humanities and the Institute for Advanced Studies Princeton. He has consulted for various policy agencies including UNICEF in Sierra Leone, and he served as Chair of the Connecticut State Advisory Committee of the U.S. Commission on Civil Rights from 2009 to His ten books include The Politics of Truth and Reconciliation in South Africa (2001); Culture and Rights (ed., 2001); Human Rights in the War on Terror (ed., 2005); and Humanitarianism and Suffering (ed., 2009). His most recent book, Writing History in International

14 xiv List of contributors Criminal Trials, selected by Choice in 2012 as an Outstanding Academic Title, analyzed the ways in which international prosecutors and defense attorneys marshal historical evidence to advance their case. He is currently writing a book on the international law and social science of speech crimes titled Propaganda on Trial (Cambridge University Press).

15 Preface to The New Legal Realism, Volumes I and II Michael McCann The publication of this two-volume set by New Legal Realist (NLR) scholars marks an important moment in sociolegal development. To a large extent, NLR scholars follow the original Realists in pushing to integrate social science with study and research about law in action. But NLR scholars do so with an astute grasp of fundamental developments in the character of both contemporary sociolegal scholarship and the legal academy. From the start, scholars involved in this movement have been concerned in particular about the limitations and arguable myopia of law school fascination with other movements like Empirical Legal Studies (ELS) or Law and Economics (L&E) in recent years. NLR offers a compelling alternative vision that engages these and other approaches while expanding beyond their limitations. These two volumes make the substantive intellectual case, by argument and example, for the value of such a comprehensive, multidimensional approach to sociolegal studies within the legal academy. The timing of these two new volumes is also propitious and marks a new self-conscious form of engagement. Law schools are in a moment of heightened panic about the crisis of their professional mission, and these volumes outline new directions in both research and teaching that can help to reconcile contradictory pressures that mark the current uncertain situation. The internal logic of each volume is both sensible and exciting. Volume I s essays focus on practices in U.S. law school teaching, conceptualization, and research about real-life law. The key goal is to encourage more successful integration of theoretically sophisticated empirical research from the law-and-society tradition into law school agendas. The collection begins by addressing analytical and epistemological dimensions of law school teaching, conceptualizations, and preparation; then shifts to method; and concludes by offering various translations of NLR into specific research questions. This volume is very much a project by and for law school professors who aim to make law real. Volume II focuses on studying law globally. It proposes to focus translation of NLR approaches on diverse global, national, and local sites of law. The collection begins with two chapters exploring the concept of globalism in relation to specific legal phenomena, and then shifts to questions of global norm transfer (globalism is all about flows, about exports and xv

16 xvi Preface to The New Legal Realism, Volumes I and II imports); it then proceeds to institutions and actors, and ends up with inquiries into normative issues of global justice. It is worth underlining at the outset that both the editors and the individual essay contributors are very distinguished scholars; they include some of the most accomplished sociolegal scholars of the past half century. It is very tempting for me to review and engage the outstanding essays in the collection on their individual merits. But it is to the whole of the enterprise rather than the distinguished parts of this new volume that I choose to direct the remainder of my prefatory comments. i. what is new legal realism? The core commitment of New Legal Realism to date has been summarized by its advocates as theory-driven empirical research about law in action that values qualitative as well as quantitative and experimental methods. 1 This could be contrasted with the most hard-core adherents of Empirical Legal Studies (ELS), who have tended to limit the scope of empiricism to quantitative data with very little theory, and classical Law and Economics (L&E) scholars, who tend to focus on deductive theory with limited attention to grounding in systematic data collection. (Of course one could point to notable exceptions in each case.) While I do not disagree with any of these claims, I propose a slightly altered framing of what the New Legal Realist effort is advancing. I begin with the observation that the law-and-society experiment fifty years ago aimed for a partnership and exchange between law professors and social scientists committed to replacing the traditional case law focus of legal scholarship and teaching with more sophisticated analysis of legal behavior. The exchange was generally reciprocal, although the common commitment to social science study of law animated both sides of the joint effort. Over time, the behavioral focus of early sociolegal study was joined by attention to legal practices, legal discourse, constructions of legal meanings, poststructural analysis of legal institutions, law and social change, sociology of legal fields, and much more. New Legal Realists have rightly pointed out, however, that the cross-disciplinary sociolegal partnerships, and especially the new interpretive turns, have not influenced the broader legal academy as much as many had originally hoped. NLR scholars thus aspire to repackage the cutting-edge insights of sociolegal research, amplify their significance, and revitalize their impact for law 1 Suchman and Mertz write in a classic essay comparing and contrasting New Legal Realism to Empirical Legal Studies: From the outset, the group focused on building an integrative model for studying law one that would bring together multiple empirical methodologies to be used in service of resolving theoretically-informed questions...rather than prejudging what kind of method would be used (quantitative, qualitative, experimental), these scholars argued that research methods should be chosen based on the kinds of questions being asked. This approach emulates the inclusive approach of the law-and-society movement and, indeed, NLR remains closely allied with Law-and-Society still. (2010, 562).

17 Preface to The New Legal Realism, Volumes I and II xvii school teaching and research. But will this repackaging of sociolegal scholarship as NLR make a difference? I very much think that NLR scholarship does have something concrete, simple, and fundamental to offer. In short, L&E and ELS refashion in new ways oldfashioned realism in that they generally aim to use microeconomic or behavioral methods to identify the nonlegal independent variables causing or determining law defined as a dependent variable. In these frameworks generally, law has relatively little power, or its limited independent power matters only when bolstered by other independent, intervening extralegal factors (as in judicial or legal impact studies). 2 By contrast, NLR tends to encompass a wide variety of approaches that recognize that law itself as language/discourse, as institutional practices, as aspirational ideals, as actual or potential enforcement by state violence, and so on actually matters as power, and is interrelated with other dimensions of extralegal or mutually constitutive power. Most NLR studies view this power complexly, attending to the constitutive role of law, or how legal meaning matters, or how legal actors perform legal practices, or how institutional norms and pressures interact with other factors. The focus is on more relational, contingent, context-sensitive, or process-based understandings of law, where law is both dependent variable and independent variable (and hence neither in the classic linear causal logic). This is not true for all NLR scholarship, but the generalization at least points to something distinctive about much of the broader NLR sensibility. And declaring and demonstrating that law matters (even in these complex, qualified ways) would seem to be a great mantra to preach in law schools. For the preceding reasons, I urge more attention to epistemology and analytical theory (of law/power) as the key to how NLR differs from ELS and L&E. In this regard, the familiar qualitative and/versus quantitative relationship strikes me as illconceived and misleading, or at least overemphasized. After all, many scholars use qualitative study to make linear causal claims in the positivist mode, and some very quantitatively oriented studies are self-consciously postpositivist and noncausal (and, as such, reject regression). Much L&E scholarship refers to little or no data at all; it is all deductive theory. ELS tends to be all data and little theory, or theory that is presumed rather than directly addressed in critical ways. While NLR embraces both economic theory and quantitative methods and thus much of the work emerging from ELS and L&E it tends to insist on more attention to background theories and assumptions regarding how best to translate between different kinds of social science understandings of law and (or in) social context. Hence, it is not the types of data that mark NLR, but the differences in the relationships among theorization, analytical premises, and empirical data. 2 This claim may understate the commitment of ELS scholars to assessing how much law matters. But most ELS studies follow the gap tradition of impact studies and tend to confirm that law is a limited resource for changing power relations in society.

18 xviii Preface to The New Legal Realism, Volumes I and II It is quite possible that my effort to push for clearer delineation of the NLR project in these ways narrows the enterprise too much, mutes big differences among NLR scholars, and deflates the big tent. And I do think that the NLR is a big tent, in at least two ways. First, NLR is self-consciously the ambassador to contemporary law schools for a tradition of law-and-society scholarship that itself has expanded dramatically in recent decades to include diverse interpretive as well as behavioral research, qualitative as well as quantitative research methods, and a host of critical theoretical frameworks applied to an ever-expanding array of legally constituted phenomena around the entire globe. We should celebrate this robust, dynamic expansion of analytical formats and topics of study. Second, NLR may distinguish its general orientation from ELS and L&E, but the former advocates have consistently reached out, welcomed, and engaged the latter in a host of ways, sometimes critical but always friendly. There is no reason to exaggerate conflict, when in fact there is a lot of vigorous, constructive engagement going on. NLR scholars tend to shrink the tent a bit only in an effort to define its boundaries in coherent ways, a dilemma that has long been shared and perhaps abandoned by spokespeople for the law-and-society tradition and its professional association, the Law and Society Association (LSA). ii. addressing the current law school crisis: judgment, globalism, and accessibility The crisis that has beset contemporary law schools has received a great deal of attention. My primary faculty appointment is not in a law school, but I have viewed the development of panic in law schools with some interest and concern. The core challenge, as I see it, has been in defining clearly the mission of contemporary law schools in a rapidly changing environment. Law schools have long experienced tensions and been subject to disagreements about their various academic, practical, and professional credentialing roles. These tensions have remained unresolved for many decades, but they have been compounded and forced to the forefront by changing fiscal pressures. Law school tuitions have increased dramatically at the same time that demand for legal services generally, and entry jobs specifically for new lawyers, have declined, thus resulting in substantial declines in law school applications and enrollments as well as forced termination of some programs. Old tensions about the mission and role of law schools have been intensified and multiplied as these fiscal pressures have escalated. New Legal Realism as a movement does not, as far as I know, offer unique solutions to the economic challenges of legal education. But it seems to me that NLR can contribute to reconciling some of the competing pressures for academic excellence and practical skill development, and thus for clarifying the mission, activity, and standards of law school practice. I offer three points on this matter. The first point transforms a common critique of NLR into a virtue. One objection by some sophisticated critics has been that some leading NLR scholarship has

19 Preface to The New Legal Realism, Volumes I and II xix withdrawn from or failed to realize the positivist goal of linear causal analysis and prediction. NLR scholars should, I think, answer, Yes, and so much the better! After all, identifying the indeterminate, contingent, context-specific character of legal meaning and practice is a hallmark of much NLR research. Most NLR scholars do not reject attention to instrumental or linear dimensions of power so much as integrate them into more complex modes of analysis that are attentive to nonlinear, interactive, and constitutive dimensions of institutional and ideological power (see McCann 2007). Indeed, the commitment to understanding contextual contingency is arguably a practical virtue that underlines the relevance of NLR approaches for law school teaching and research. 3 Rather than a specious promise of certainty, NLR scholarship approaches offer to develop capacities of analysts and practitioners alike to exercise sophisticated judgment amid the complexity of multiple interacting institutional, discursive, and instrumental forces. Much NLR scholarship does not offer the simple, confident explanations of the kind that ELS and L&E tend to offer, but for many analysts that is its appeal; it questions the sufficiency of numerical representations and simplistic causal explanation, offering instead rich intellectual analysis and practical skills of informed interpretation and assessment in sorting out complex, contingent, dynamic, multidimensional features of real-life situations. Is this not what lawyers most need? And is this not what we look for in analytical scholarship? In many ways, this commitment recalls Holmes s famous realist claim that the life of the law has not been logic; it has been experience (Holmes 1881, 1). Whether NLR is consistent with the old realism is largely irrelevant, not least because, as Brian Tamanaha (Vol. I) has demonstrated, the old realism was rather more variable, complex, and subtle than is often alleged. What matters most is the contribution of NLR now, and I think that the movement is timely in its appeal. Second, NLR scholarship generally has been ahead of the curve in pressing for study of legal institutions and practices outside the United States, and especially for addressing important dimensions of growing global interdependence. NLR scholars have helped to underline why these commitments are important, even for scholars and lawyers who plan to focus their energies within the United States. For example, one of the signal contributions of recent sociolegal scholarship has been to show how U.S. law has been shaped by global/international forces, by U.S. involvement in the world, and by relationships beyond unilateral U.S. control. This is the thrust of the expansive scholarship on how World War II and the Cold War were critical to creating pressures supporting the civil rights movement, the War on Poverty, and the Great Society in the United States (Dudziak 2011; Tani 2012). Late Cold War human rights campaigns against the Soviets were similarly critical to narrowing the scope of rights talk in the United States, including the emphasis on legal procedure and rights of the accused that went hand in hand with the rise of the mass incarceration state, 3 See the discussion by Erlanger, Garth, Larson, Mertz, Nourse, and Wilkins (2005) on the situated knowledge that NLR emphasizes.

20 xx Preface to The New Legal Realism, Volumes I and II and fed into neoliberalism s key currents of marketization, contracts, and the like. The entire history of citizenship rights, the right to have rights, was shaped by U.S. struggles against Europe, slave importation from Africa, removal of Native Americans from their traditional homelands, and immigration from all directions; U.S. law was forged out of these engagements with peoples, states, and forces from beyond our borders. Moreover, laws of war continuously shape domestic law and policy, and vice versa, right up through issues with enemy combatants. In addition, U. S. commercial and intellectual property law has evolved to deal with participation in an increasingly globalized economy. And U.S. law schools have been a persistent force in proselytizing (often very misleadingly) for versions of rule of law and specific legal techniques around the world, arguably in imperial fashion. In short, the international and global have been critical parts of the context of American domestic law development, and the United States has been a formative force shaping international relations and globalism since its origins. One promise of NLR scholarship is to bring attention about the great power and problematic impacts of American law and lawyers more directly into U.S. teaching of aspiring young legal professionals and academics. The NLR editors of these volumes are sophisticated and integrate these understandings very well; these are lessons that much of their research well documents. By contrast, demonstrating and interrogating global interdependency is not a focus of much L&E or ELS study, which is largely U.S. centered and often are not methodologically attuned to the complexities of global interdependence. Indeed, those approaches can be complicit in exporting U.S. derived models, techniques, and assumptions in quasi-imperial fashion. 4 Volume II of The New Legal Realism collection in particular is committed to recognizing the theme of the U.S. shaping and shaped by the world. One might quibble with the separation of volumes according to a local/domestic U.S. focus or a global focus. Again, the United States and its legal system have always been connected to and shaped by global interdependencies. But the editors fully recognize this connection, and the twovolume pairing underlines integration of the local and global in important, sophisticated ways. Finally, the strong emphasis of much NLR scholarship on interpretive and qualitative methods, attention to legal discourse and meaning, and sensitivity to institutional context promises to add sophistication and rigor to enterprises in which most traditional law scholars already engage. Whereas ELS and L&E offer exotic, somewhat esoteric methodologies that are foreign to most conventional legal scholarship, much of the NLR scholarship aims primarily to sharpen, refine, and elevate theoretically, analytically, and empirically modes of scholarship that are familiar, 4 The copious scholarship of Yves Dezalay and Bryant Garth (2002) has raised these and related questions in theoretically sophisticated and empirically rigorous ways. A rich literature on U.S. colonial ventures that were formative in the development of empire also exists. See, for one brilliant example, Merry (2000).

21 Preface to The New Legal Realism, Volumes I and II xxi accessible for literate readers, and realistically practicable with only moderate retooling of scholarly skills. There is much sophisticated method involved in good ethnography, qualitative case study, historical narrative, and analytical theory, but it is more accessible than formal modeling or advanced statistical regression. The latter may be attractive for some legal scholars and students, but the former are likely to be much more appealing and available for effective use among a larger number and range of scholars in the law school world. Together, these virtues of refining capacity for legal judgment in dynamic and complex institutional relations, of viewing local legal practices in comparative and global terms, and of accessibility all offer important value to legal scholars struggling to make modern law schools relevant and effective. iii. reaching across divides: why social scientists should care One of the most promising aspects of the New Legal Realism project is the clarity of focus on a targeted audience. The project has been developed mostly by law school professors, with varying degrees and kinds of disciplinary or interdisciplinary connection, writing to and for other law school professor colleagues. This targeting is rather more evident in Volume I, which focuses clearly on U.S. law schools and audiences, than in Volume II, but both seem to aim more for law school audiences than for scholars anchored in social science or humanities units or in other intellectual communities largely outside law school orbits. While a virtue, however, this specification of audience can also be narrowing in potentially problematic ways. In short, to the extent that the New Legal Realism is an interdisciplinary sociolegal project that emanates from debates primarily within law schools, then it may offer little of intellectual or professional value to sociolegal scholars largely outside law schools. In that case, the NLR campaign could be viewed as simply the latest campaign in the palace wars of contemporary law schools and largely irrelevant to social scientists or humanities scholars. Indeed, at worst, it might exacerbate the split between law professors and those in social science disciplines and interdisciplinary units (not to mention humanities scholars), undermining any sense of common commitments that once existed in the law-and-society traditions. I again think this potential tension is not a great problem, and in fact it can be viewed as an opportunity. At least three points of productive connection between NLR and social science (and humanities) scholars strike me as promising. First, there is still much intellectual reason for continued exchanges and collaboration among law school faculty, social scientists, and humanities scholars. While those scholars outside law schools do not have a direct interest in the relative institutional influence of NLR inside law schools, we still have an intellectual stake in the interaction. After all, the old realist and postrealist sociolegal projects overcame the challenges of different institutional demands, as they imagined (perhaps naively)

22 xxii Preface to The New Legal Realism, Volumes I and II a two-way partnership between law professors and social scientists. There is no reason to devalue the aim of partnership now because NLR is repackaging the long collaborative tradition of interdisciplinary law-and-society scholarship for law schools facing new challenges. Indeed, my own experience confirms that we social scientists still have as much to learn from colleagues in law schools as they can learn from us. Second, many social scientists have become more interested in and involved with law schools, as law schools have become more interested in PhDs. The numbers of PhDs hired in law schools have grown over the past decades, and many PhDs (like me) are adjuncts, affiliates, or just close colleagues with law school faculty. Social scientists in turn often welcome the larger salaries, expanded audiences, elevated public stages, reduced teaching loads, and better food that come with participation in law school activities. Moreover, engagement with law schools can expand the range of venues, terrains, and types of policy or political engagement that many social scientists and humanities scholars value. The New Legal Realism project thus can be viewed as indirectly enhancing these opportunities and inclinations for scholars with a PhD within law schools. Finally, we should not forget that many faculty members in the social sciences and humanities routinely teach, mentor, and counsel undergraduates who are considering or committed to attending law schools as well as PhD students who may seek employment in law schools. Those of us who believe that an increased role of NLR scholarship would enhance the research and teaching agendas of law schools may find our interests served in these other ways as well. If I knew that NLR approaches were welcomed at some schools, I might be more comfortable recommending professional legal education to students. If NLR approaches became more welcomed overall, my routine and increasing reservations about recommending applications to law schools might be relaxed a bit. And if NLR can create more opportunities for my PhD students, then more power to them, and I am happy to be an ally. In all these regards, intellectual principle and professional interest converge for sociolegal social scientists and humanities scholars. In sum, there is much to be said on behalf of the New Legal Realism project intellectually and professionally. I find the release of these two volumes to signal an important moment for understanding better, assessing more fully, and advancing the NLR agenda at this historical moment. references Dezalay, Yves, and Bryant G. Garth The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States. Chicago: University of Chicago Press. Dudziak, Mary L Cold War, Civil Rights Race and the Image of American Democracy. Princeton: Princeton University Press.

23 Preface to The New Legal Realism, Volumes I and II xxiii Erlanger, Howard, Bryant Garth, Jane E. Larson, Elizabeth Mertz, Victoria Nourse, and David B. Wilkins Is It Time for a New Legal Realism? Wisconsin Law Review 2005 (2): Holmes, Oliver Wendell The Common Law. Boston: Little, Brown. McCann, Michael Dr. Strangelove: Or How I Learned to Stop Worrying and Love Methodology. In Studies in Law, Politics, and Society, edited by Austin Sarat, Boston: JAI/Elsevier Press. Merry, Sally Engle Colonizing Hawai i: The Cultural Power of Law. Princeton: Princeton University Press. Suchman, Mark C., and Elizabeth Mertz Toward a New Legal Empiricism: Empirical Legal Studies and the New Legal Realism. Annual Review of Law and Social Science 6: Tani, Karen M Welfare and Rights before the Movement: Rights as a Language of the State. Yale Law Journal 122: